At the inception of the Index, IP regimes of 11 countries were analyzed. The latest Index analyzed 38 countries – representing 85 % of the world’s GDP. The Report was an emotional response to the prevailing international perception that IP was in U.S.’s interest.

It was an attempt to cut – through that debate by placing hard data on table. Countries were evaluated based upon 30 criteria for enabling fact- based progress.

Tom Donohue’s Bombastic Speech on the Importance of IP :

” IP is imperative for alleviating poverty, hunger and other indices of low economic growth.”

Yeah! Though rare but such statements are expected from the head of an organization representing the largest U.S. corporations.

I want to ask this gentleman, had it not been for generic drugs, how possibly could exorbitant patented drug prices aid in poverty alleviation in the under – developed and developing countries? And a stringent IP regime that motivates breeders ( multinational life-science corporations) to produce high – yielding varieties at the cost of small scale farmers enable in curbing hunger?

While I’m not undermining the importance of IP, this sort of pompous rhetoric is overwhelming.

Other points made by him stressing upon the importance of IP ( justifying the need for an Index of such a nature) and my rebuttals are :

(a) Without IP protection, ideas would never translate into products :

Are we all not aware that most of the modern age inventions (steam ships, railways and gas lamps) dating back to the Industrial Revolution were not an outcome of the patent system ( for more on this, read here, here and here – Pg. 351).

(b) IP is imperative for a worldwide commitment to growth, innovation and technology and the Index indicated where countries stood on innovation :

If this were true, why are countries such as Algeria, Indonesia, Eucador ranked behind India in the Global Innovation Index 2015 even though they fare better than India in the Index. The relationship between IP and innovation cannot be discounted. However, the premise that IP was the sole parameter for unleashing the innovative capacity of a nation is misplaced.

This is corroborated by CII’s recommendation to drive innovation in India. IPR is certainly one of the areas where India has room for improvement. At the same time, attention to following would go a long way in untapping it’s innovative capabilities –

(a) Higher education

(b) Industrial innovation

(c) Entrepreneurship

(d) Easing the business environment

(e) Infrastructure development

Professor Meir Pugatch’s Insights into the Report :

Following are noteworthy points –

(a) From next year onwards, IP regimes of 45 economies shall be analysed.

(b) While countries had progressed (particularly the ones in the top most cluster), the BRICS nations were stagnant. He was optimistic about India’s IP regime improving.

(c) Patents (particularly pharma related) were not the only contestable area in the IP sphere. Debates often revolved around patents but there were other areas that required attention. The Index was not merely about a particular area of IP but a summation of all the facets (patents, copyright, trademarks, trade secrets and market access).

(d) Statistics indicated a strong relationship between IP and innovation.

(e) The TPP was the most important standard of the 21st Century and it was worthwhile to keep an eye on post – TPP developments.

(f) With the statistics tabled, it was high time for debates on the relationship between IP and economic growth to cease.

To my utter pleasure, question on the interplay between the Index and the Special 301 was raised by someone from the audience. ( This has been on my mind since a while now!). To which Prof. Pugatch’s response was a a difference in origin and source of the two instruments. Though there were many overlaps between the two, the Special 301 was political in nature while the Index reflected the U.S. corporate sentiment (being the views of the members of the Chambers of Commerce). The Index relied upon the Special 301 as a source and was much wider in scope.

Apart from talking about the role of IP in their respective industries, they acknowledged the crucial role played by the Index in international IP policy. It was not merely an academic exercise but a tool to engage in a dialogue with foreign governments and partnering institutions.

Anissa Brennan pointed out at the Index’s deficiency to capture every parameter. Camcording was one of such parameters.

IPRI focused on 3 areas ( overall IP protection, copyright and patents) while the Index focused on 6 ( patents, copyright, trademarks, trade secrets & market access, enforcement and ratification to international treaties). The PRAcollected data from indirect sources (mostly international organizations such as the IMF, World Bank, OECD and WIPO) while the GIPC relied upon direct sources.

CONCLUSION :

For any keen follower of international IP policy, the release of the Index is a big event. More than watching the two hour video ( except for Tom Donohue’s portion) , I would recommend everyone to read the Report.

I’ve skimmed through the first 52 pages, which enunciates the methodology and some pertinent trends. In my next post, I’ll bring forth some substantive comments on it.

Striking though not surprising is the active role of the economists in the IP v. Innovation debate ( considering that significant scholarship on the relationship between the two has been produced by economists) and the passivity of IP lawyers. That’s also because we IP lawyers like to believe that IP protection( just like real property) is of utmost importance!

COPYRIGHT POLICY

1. As an ardent supporter of the open access movement, the author does not assert any proprietary rights over the content for lawful non-commercial usage. However, due attribution and appropriate link back to the original content will be appreciated.

2. Due to the mammoth research effort involved in writing a post, usage beyond "fair use" and for "commercial purposes" is strictly prohibited albeit author's express written consent.

3. Users are urged to be mindful of third party proprietary rights in the content (including images, if any). In case of confusion, kindly contact the author at ssharma2@law.gwu.edu for clarification on "third-party rights". Clarification on the meaning of "third-party rights" WILL NOT constitute binding legal advice.